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NM high court asked to legalize gay marriage

SANTA FE, N.M.—New Mexico's highest court was asked Thursday by a same-sex couple in Santa Fe to decide whether gay marriage is legal in the state.

If the court decides the case, it could resolve a politically difficult issue that has stalled in the Legislature. A proposed constitutional amendment to legalize gay marriage died in the Democratic-controlled Legislature earlier this year. Lawmakers in the past also have rejected proposals to allow domestic partnerships that would give same-sex couples many of the legal protections and benefits of married couples.

Lawyers for two Santa Fe men, Alexander Hanna and Yon Hudson, asked the Supreme Court to order the Santa Fe County clerk to issue them a marriage license.

The court didn't immediately decide whether it will consider the case.

The couple had filed a lawsuit in district court earlier this month after being denied a marriage license.

One of their attorneys, state Rep. Brian Egolf, of Santa Fe, said the case was being withdrawn from the district court and shifted to the Supreme Court to try to get a speedy decision on the same-sex marriage issue.

Egolf said his clients don't want to wait years for the case to go through the state or federal court systems.

"We're trying to find them the quickest way to get them a marriage license," said Egolf, who sponsored the gay marriage constitutional amendment in this year's legislative session.

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The lawsuit contends that denying marriage licenses to same-sex couples violates the New Mexico Constitution, including its Equal Rights Amendment prohibiting gender-based discrimination and provisions that guarantee due process and equal protection under the law.

Egolf said the case is based on state—not federal—constitutional rights.

New Mexico adopted its Equal Rights Amendment in 1976, and there is no similar provision in the U.S. Constitution. The lawsuit said New Mexico's Equal Rights Amendment provides greater legal safeguards than the equal protection clause in the federal Constitution.

The lawsuit said "the fact that marriage licenses are being denied to males who want to marry males and females who want to marry females makes the sex of the applicants the determining factor."

"The ERA does nothing if it does not prohibit the state from making the equal application of laws contingent upon one's sex," the lawsuit said.

There is no provision in state law that specifically authorizes or prohibits same-sex marriage, according to the lawsuit.

However, Attorney General Gary King released a legal analysis earlier this month that concluded gay marriage isn't allowed in New Mexico because the marriage laws have "multiple gender-specific references" and the laws date to the 1860s, which makes it unlikely that the Territorial Legislature contemplated same-sex couples being married.

But King's office also said a prohibition on same-sex marriage might violate the equal protection clause of the New Mexico Constitution.

State law contains a model marriage license with sections for a male and female applicant. The lawsuit said that is "merely intended as a guide" for county clerks and doesn't establish any requirements for obtaining a marriage license. State law specifically prohibits marriages between close relatives and with a minor.

The Supreme Court typically decides cases being appealed after a ruling by a lower court. However, the justices have the power to hear some cases that are filed directly with them, and the lawsuit said the gay marriage issue presents a "fundamental constitutional question of great public importance" that should be resolved by the high court.